Employment law and protected conversations: will they just be dangerous talk?

Vince Cable’s consultation on protected conversations is due to start this year. The idea behind it is to give employers the opportunity to have frank discussions with their workforce, safe in the knowledge that this candour cannot come back to haunt them in a subsequent Employment Tribunal claim. Supporters of the proposal argue that it is in the interests of both parties to discuss problems in a straightforward and honest manner, without having to use language intended to safeguard their legal positions. Opponents, however, suggest there is no need for employers to be protected from their own staff and that current laws and good management practice are sufficient to deal with any issues in the workplace.

It may be that some employers are frustrated with the legal requirement to follow a capability process or performance management procedure, when they believe it is quite obvious that somebody is fundamentally unsuitable for a role. For these employers, the apparent ability to cut though the red tape via a protected conversation may seem a very attractive option. However, opponents put forward the counter-argument that employers should take more responsibility for recruiting the right person in the first place, then closely monitoring their performance during a probationary period.

Employment Tribunals

At present, employers already have the benefit of the ‘without prejudice’ rule, which means that an off-the-record discussion cannot be quoted in an Employment Tribunal hearing. However, this label will only apply if there is already an ongoing dispute that the parties are trying to resolve. No doubt some employers will see a protected conversation as a useful shortcut to a compromise agreement, obviating the need for time-consuming and morale-sapping grievance procedures. Employees, on the other hand, may see it as carte blanche for their employers to ignore the rules and make up their own.

Constructive unfair dismissal and protected conversations

For some, protected conversations are a necessary step for allowing employers the flexibility to function efficiently and compete in a challenging economic climate. For others, the proposal is both objectionable in principle, as well as wholly inconsistent with current employment legislation. The benefits to employers could be substantial; however, so might be the risks – for instance, in defending a claim for constructive unfair dismissal, where part or whole of a (brutally) frank discussion is subsequently held by an Employment Tribunal not to be protected.

Perhaps one thing that employment lawyers can agree on is that, if protected conversations are to become law, the ‘devil will be in the drafting’. Among the many questions requiring serious consideration are:

When will a protected conversation begin and end?

Can an employee refuse to take part?

Should there be a right to be accompanied?

Could a protected conversation also be without prejudice or would these concepts remain distinct?

Without careful draftsmanship, an idea that is easy to grasp in theory could be unworkable in practice. On a purely financial level, if protected conversations can provide an effective mechanism whereby disputes can be ‘nipped in the bud’ at an early stage, then, together with the introduction of Employment Tribunal fees, there is the potential to reduce the amount of litigation in the Employment Tribunal system and alleviate the burden on the taxpayer.

Grievance procedure

However, it is worth remembering that the last major attempt by the government to keep disputes in house resulted in the short-lived Employment Act 2002 (Dispute Resolution) Regulations 2004. The reasoning behind these was to oblige employers and employees to attempt to resolve differences by way of statutory disciplinary and grievance procedures before proceeding to an Employment Tribunal hearing.

Unfortunately, instead of reducing the number of claims, it was widely accepted that the legislation had the opposite effect. In the same way, it is not difficult to imagine how protected conversations could create more disputes than they resolve.

For more information on any of the issues raised in this article, contact our Employment Law team or call 0117 904 6000.

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